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2019 DIGILAW 1300 (KAR)

Harijana Gundamma v. K. Virupakshi

2019-06-17

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The claimants being dissatisfied with the common judgment and award dated 25.2.2012, passed in MVC Nos.769, 770 and 771 of 2011, by the MACT-II, Bellary, have filed these appeals. 2. It is the case of the claimants before the tribunal that, on 29.3.2011, while deceased Basavaraju @ Hari jana Basappa and others proceeding in auto-rickshaw bearing registration No.AP 02/X 1633 from Rayadurga to Netrapali, the driver of the said auto-rickshaw was driving the vehicle slowly and cautiously and at about 7.30 p.m., the driver of the tractor and trailer bearing registration No. AP 02/X 1718 and AP 02/X 1720 drove the same in a rash and negligent manner from opposite direction and dashed to the said auto-rickshaw near RDT Hospital on Rayadurga-Ananthapur road. As a result of the accident, Basavaraju @ Harijana Basappa sustained grievous injuries and later, he succumbed to the injuries on the way to VIMS Hospital, Bellary. Other two inmates sustained injuries. Dependents of the deceased Basavaraju @ Hari jana Basappa filed MVC No.769/2011 seeking compensation against the driver, owner and insurer of the offending tractor and trailer. Similarly, other two injured persons Nenavathi Gowri Bai @ Gowri Bai filed MVC No.770/2011 and G.T.Venkateshulu @ Guduse Venkateshulu @ N.Venkateshulu filed MVC No.771/2011 seeking compensation for the injuries sustained by them in the said accident. All the claimants contended that the respondents are jointly and severally-liable to pay the compensation. 3. In pursuance of notices, respondents No.1 and 3 appeared before the tribunal . Respondent No.2 remained absent and he was placed exparte. Respondent No.1 has not chosen to file any objections. Respondent No.3 filed the written statement denying that the accident was due to rash and negligent driving by respondent No.1 and that he caused the accident, resulting in the death of Basavaraju @ Hari jana Basappa and also injuries to Nenavathi Gowri Bai @ Gowri Bai and G.T.Venkateshulu @ Guduse Venkateshulu @ N.Venkateshulu. He has denied the age, occupation and income of the claimants. He further contends that there was contributory negligence on the part of the driver of the auto-rickshaw and that the driver of the tractor and trailer was not holding valid and effective licence to drive such category of vehicle as on the date of accident. Therefore, that is violation of policy condition and as such, Insurance Company is not liable to pay any compensation. 4. Therefore, that is violation of policy condition and as such, Insurance Company is not liable to pay any compensation. 4. On the basis of the pleadings of the parties, the tribunal framed issues in all the cases and disposed of the cases by common judgment. 5. In support of their claim petitions, claimants got examined themselves as PWs.1 to 4 and got marked in all 77 documents as Exs.P.1 to P.77. Respondent No.2 has produced 5 documents as Exs.R.1 to R.5. The learned member of the tribunal after hearing both the parties, passed the impugned judgment, awarding a compensation of Rs.5,77,500/- in MVC No.769/2011 and Rs.1,26,260/- in MVC No.770/2011 and Rs.1,63,760/- in MVC No.771/2011 with interest at 6% p.a. from the date of petition till deposit. Further the Tribunal exonerated the Insurance Company and directed respondent Nos.1 and 2 to deposit the compensation amount. 6. The claimants in all the three claim petitions being aggrieved with the impugned judgment and award, have filed these appeals on the ground that the saddling of liability on respondent Nos.1 and 2 is improper as the driver of the offending vehicle was holding valid and effective driving licence at the time of accident. Further, they have also contended that the compensation awarded by the Tribunal is on the lower side. 7. Heard the learned counsel for the parties. 8. A short question which arises for consideration before this Court is as to "whether the claimants have made out grounds to saddle the liability to pay the compensation on the insurer and also for enhancement of compensation?" 9. The Tribunal has exonerated the insurer from payment of compensation on the ground that there is fundamental breach of policy condition as the driver of the offending vehicle was holding a licence only to drive the LMV (NT) and that the vehicle involved in the accident is a tractor trailer and therefore, the driver had no valid and effective licence to drive the said vehicle as on the date of accident. This contention of the insurer before the Tribunal is not available to the insurer in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., (2017) AIR SC 3668. 10. This contention of the insurer before the Tribunal is not available to the insurer in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., (2017) AIR SC 3668. 10. Therefore, the driver who is having the valid driving licence to drive light motor non transport vehicle need not obtain a separate endorsement for driving LMV transport vehicle. Therefore, the ground on which the insurer was exonerated from payment of compensation is not available to the insurer in view of the above decision of the Hon'ble Supreme Court. Therefore, in all these cases liability saddled against the owner has to be extended to the insurer to indemnify and the insurer cannot avoid his liability to pay the said compensation. MFA No.23943/2012 11. Learned counsel for the appellants submitted that the tribunal has considered the income of the deceased at Rs.4,500/- p.m. which needs to be enhanced and further that the claimants are entitled for addition of 40% of the income of the deceased towards future prospects and that the compensation awarded by the Tribunal on conventional head is also not in accordance with the decision of the Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others, (2017) AIR SC 5157. 12. It is contended by the claimants that the deceased was aged about 36 years was doing cool ie work and earning Rs.6,000/- p.m. and used to contribute his earnings towards family maintenance. However, claimants have not adduced any positive evidence to prove the income of the deceased. In the absence of the said evidence, the Tribunal has considered the income of the deceased at Rs.4,500/-p.m. and deducted 1/3 towards personal and living expenses. Considering the age and occupation of the deceased and also the fact that the accident occurred in the year 2011 and further the guidelines provided for settlement of cases before the Lok Adalath, it is just and necessary to consider the income of the deceased at Rs.6,000/- per month for awarding compensation. It is also necessary to make additional 40% of the income of deceased towards future prospects in view of the dictum of Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others. 13. It is also necessary to make additional 40% of the income of deceased towards future prospects in view of the dictum of Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others. 13. Thus, on reassessment, following just compensation is awarded to the claimants:- Loss of dependency (5600X12X15) 10,08,000.00 Other conventional head 70,000.00 Total 10,78,000.00 Thus, the claimants are entitled for compensation of Rs.10,78,000/- as against Rs.5,77,500/- awarded by the Tribunal. MFA No.23944/2012 14. Learned counsel for the appellant submitted that the tribunal has considered the disability of the petitioner at 12% of the whole body and the same may be enhanced to 14% to the whole body. Learned counsel further submitted that the income of the petitioner is considered as Rs.3,000/-p.m. by the Tribunal which needs to be enhanced. 15. The petitioner has contended before the Tribunal that she was doing agricultural work and cool ie and earning Rs.1,30,000 per annum. The claimant has not produced any cogent evidence to prove the income. Therefore, the Tribunal has considered the income of the petitioner at Rs.3,000/-per month in order to assess the compensation. Further the permanent disability of the petitioner was considered at 12% to the whole body which is proper as per the medical evidence produced by the claimant and it needs no interference. However, considering the age and occupation of the claimant and also the guidelines provided for settlement of cases before the Lok Adalat, it is just and necessary to consider the income at Rs.6,000/-p.m.. Thus, on reassessment, following just compensation is awarded to the claimants:- Disability (6000X12%X18X12) 1,55,520.00 Pain and sufferings 30,000.00 Medical expenses 8,000.00 Attendant charges 15,000.00 Nourishment charges 3,000.00 Loss of earning during the treatment period 6,000.00 Loss of amenities 10,000.00 Total 2,27,520.00 16. Thus, the claimant is entitled for compensation of Rs.2,27,520/- as against Rs.1,26,260/- awarded by the Tribunal. MFA No.23945/2012 Learned counsel for the appellant submitted that the claimant was working as Mestri and earning Rs.300/- per day. However, he failed to produce the evidence to prove his income. In the absence of the said material, the Tribunal considered his income at Rs.4,500/- p.m. and considered the disability of the petitioner at 8% to the whole body. MFA No.23945/2012 Learned counsel for the appellant submitted that the claimant was working as Mestri and earning Rs.300/- per day. However, he failed to produce the evidence to prove his income. In the absence of the said material, the Tribunal considered his income at Rs.4,500/- p.m. and considered the disability of the petitioner at 8% to the whole body. The learned counsel for the insurer submitted that the Doctor who has issued the disability certificate-Ex.P46 was not examined and therefore, the disability is not proved and as such, the claimant is not entitled for any compensation towards future earning capacity. It is seen from the record that the claimant herein has not examined the Doctor who had issued disability certificate Ex.P46 in order to prove the disability suffered by the claimant. Therefore, findings recorded by the Tribunal that the petitioner is suffering from permanent disability of 8% to the whole body is liable to be set aside. However, insurer has not challenged the award. Under these circumstances, it is just and necessary to retain the compensation awarded by the Tribunal and that the claimant is entitled for compensation as awarded by the Tribunal at Rs.1,63,760/-. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER All the appeals are partly allowed. Judgment and award dated 29/9/2012 passed in MVC No.769, 770 and 771 of 2011 by the MACT-IX, Bellary, so far as fastening the liability on respondent Nos.1 and 2 and exonerating the insurer is set aside. It is ordered that the insurer is liable to pay the compensation awarded in these claim petitions. The insurer is directed to deposit the compensation amount within eight weeks before the Tribunal. IN MFA No.23943/2012 claimant is awarded compensation of Rs.10,78,000/- with interest at 6% p.a. from the date of petition till deposit IN MFA No.23944/2012 claimant is awarded compensation of Rs.2,27,520/- with interest at 6% p.a. from the date of petition till deposit.